Just My Reimagination, Just Your Intellectual Property

Abstract

The emergence of reimagining as a cultural phenomenon has extended its reach from being primarily a personal hobby, relegated to the private sphere, to encompass a broader societal and technological context. Artists, politicians, businesses, advocacy groups, and minority communities are increasingly engaging in the practice of reimagining popular works, symbols, or culturally significant designs. These activities serve various purposes, including entering societal discourse, self-expression, or creating entirely new expressions unrelated to the protected materials. Reimagining can take the form of commentary on the source material, its creators, or right-holders, or it can result in expressions that may touch on contemporary events, serve advertising purposes, or contribute to self-empowerment. In the context of transitioning away from the conventional linear ‘take-make-dispose’ economic model and embracing the principles of the (digital) circular economy, this chapter argues for a shift in intellectual property (IP) policy. It emphasises the need to protect reimagining practices from being overly constrained by IP owners, both through legislative and judicial measures. This argument seeks to inject fresh perspectives into the ongoing debate surrounding the balance between IP rights associated with creative endeavours and the fundamental right to freedom of expression as protected by international texts.

Within the European Union (EU), a fragmented approach is evident. The treatment of reimagined creations differs based on the type of IP rights invoked, leading to challenges related to IP rights cumulation. Furthermore, distinctions arise depending on the nature of the expression, especially in cases involving commercial use. The digital or analogue environment in which reimagining occurs also carries its own set of challenges, with certain online platforms facing increased obligations. This lack of a comprehensive approach to protect the dissemination of reimagined expressions and its impact on fostering a more sustainable, inclusive democratic society is particularly noteworthy.

Overall, the chapter highlights the expanding role of reimagining in contemporary society and argues for a substantial IP law reform to preserve its legitimacy, strengthen freedom of expression, and fosters the objectives of the circular economy. The current disparities in the treatment of reimagined content within the EU prompt a call for a more unified and holistic approach to promote its widespread dissemination and enhance societal inclusivity.

Keywords: upcycling, copyright, IP exhaustion, trademark, GenAI